DP Creations LLC v. Ke Yi Ke Er Shenzhen Toys Co Ltd
2:24-cv-00240
W.D. Wash.Apr 15, 2024Background
- DP Creations LLC (d/b/a Bountiful Baby) owns copyrights relating to realistic baby doll supplies and alleges infringement by Ke Yi Ke Er Shenzhen Toys Co. Ltd. (d/b/a Miaio Toys) via sales on Amazon.
- Bountiful Baby initially filed DMCA infringement notifications with Amazon, which Miaio responded to with a counter-notice giving an email and a (corrupted) physical address in China.
- Bountiful Baby first sued Miaio in Utah, where the court allowed alternative service by email and certified mail; Miaio moved to dismiss for lack of personal jurisdiction, and the Utah court dismissed, stating Washington was a proper venue.
- Plaintiff refiled in the Western District of Washington and moved for alternative service under FRCP 4(f)(3), seeking to serve Miaio by email and certified mail.
- Miaio is a Chinese company, and China is a signatory to the Hague Convention, which objects to some service methods but not email, per Ninth Circuit precedent.
- Plaintiff argues alternative service is appropriate given prior consent to jurisdiction and use of the same email address in this dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether email service violates international agreements | Service by email not barred by Hague; Ninth Circuit permits it | No express argument cited, but general reliance on Hague restrictions | Email service is not prohibited by international agreement |
| Whether email service comports with due process | Email is reasonably calculated to notify, especially given online business | No express argument cited | Email service is sufficient for due process |
| Whether alternative service is necessary | Defendant provided email/contact info; prior consent; past participation | Not specified | Alternative service is warranted given litigation history |
| Proper method for effecting service | Email, with added certified mail to last known address in China | Not specified | Plaintiff must serve via both email and certified mail |
Key Cases Cited
- Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (service under Rule 4(f)(3) is not extraordinary and is left to district court discretion)
- Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) (service must be "reasonably calculated" to provide notice and opportunity to respond)
- Microsoft Corp. v. Buy More, Inc., 703 F. App’x 476 (9th Cir. 2017) (district court has discretion in balancing limitations and benefits of email service)